Improving the rules of the Canadian Human Rights Commission complaint process

The Canadian Human Rights Commission (CHRC) has updated its rules for parties participating in its complaint process and is seeking input from the community, users and stakeholders.

The Discrimination Complaint Rules set out procedures for filing, amending, and responding to complaints and address issues like deadlines and page limits.

However, it is telling that the stated purpose of the rules emphasizes maintaining a workable and administratively effective process and ensuring procedural fairness, yet makes no mention of equity, substantive equality or accessibility. This omission is at odds with the CHRC's core mandate and historic role in investigating complaints, and it raises the following concerns:

1. Objectivity Does Not Imply Neutrality Toward the Commission’s Mandate

The CHRC has a unique role in promoting compliance with the Canadian Human Rights Act (CHRA). Historically, when human rights regimes emerged across Canada to combat discrimination, the raison d’être of commissions, beyond public education and awareness, was twofold. First, their investigative mandates were akin to a police investigation—actively assisting complainants in gathering evidence and preparing their cases for adjudication.

Second, like state prosecutors of public offences, they would assume active roles in advancing discrimination complaints before tribunals. Indeed, Walter Tarnopolsky, a preeminent jurist and human rights scholar, emphasized that the effectiveness of human rights regimes depended on the existence of state-funded enforcement bodies. In their absence, he argued, individuals facing discrimination lack the resources, knowledge, or confidence to pursue their rights effectively.

In other words, the Commission is not, and should not be, neutral towards the social wrong of discrimination.

Yet, the current rules appear to overlook this critical responsibility by having the Commission adopt a more neutral stance that fails to acknowledge its role in ensuring compliance with the CHRC.

By not fully embracing its investigative mandate, the Commission risks diminishing its historical role in combating discrimination and promoting substantive equality.

2. Substantive Equality vs. Formal Equality

The CHRC’s procedural rules adopt an approach that appears to favour formal equality—treating all parties similarly without adequately considering their differing circumstances.

However, Canadian equality jurisprudence recognizes that formal equality often perpetuates disparities when individuals or groups are differently situated.

Substantive equality, in contrast, requires tailoring processes to meet the unique needs of complainants, particularly those from marginalized communities.

The rules fail to address the inherent power imbalances between complainants, who are often marginalized individuals, and respondents, who frequently possess greater financial and legal resources.

By not proactively assisting complainants in gathering evidence and preparing their cases, the CHRC risks undermining substantive equality and reinforcing existing inequities.

While the rules allow parties to request accommodations, these provisions are narrowly limited to needs linked to a protected ground of discrimination. Such an approach falls short of implementing a universally accessible process that anticipates and addresses diverse needs and power imbalances from the outset.

Advocates of the social model of disability stress that accommodation should be a secondary fallback measure ("Plan B"). A universally designed process ("Plan A")—built on flexibility and inclusivity—would negate the need for reactive accommodations in many cases.

3. Accessibility and Informality Undermined

The human rights process was intended to be an informal and accessible alternative to civil litigation. This is one of the reasons why the Supreme Court declined to recognize the tort of discrimination. The public nature of the wrong of discrimination, coupled with the imbalance of power between complainants and respondents, requires a special process that is different from litigation relating to the private interests of individuals.

However, the new rules impose a formalistic framework that resembles an adversarial process, effectively creating an additional layer of legal complexity. Ironically, the cumulative effect is that the combined complaint processes before the CHRC and the Canadian Human Rights Tribunal (CHRT) are now more complex, less accessible, and more expensive and protracted than pursuing civil litigation in the courts.

Indeed, to seek relief under the Act for discrimination, a complainant may face up to four separate legal challenges attempting to dismiss their complaint (section 41(1); section 44(1); motion to strike before the CHRT and section 53(1)). Each challenge demands a time-consuming and potentially costly round of written submissions and results in a reviewable decision (causing further delays and expenses).

The Commission’s rules should strive to streamline the process, minimizing opportunities for excessive legal maneuvering and undue delays in addressing complaints on their merits.

Proactive investigations are also better for respondents who would not have to lawyer up, as the Commission could determine when the evidence it gathers does not support allegations of discrimination.

The rules inadvertently favour respondents and those with legal representation by requiring parties to navigate two adjudicative processes—the Commission’s procedural framework and the Tribunal’s hearing stage.

This complexity exacerbates the power imbalance, further disadvantaging unrepresented complainants and undermining the CHRC’s mandate to protect quasi-constitutional rights effectively.

Recommendations

Instead of layering an additional court-like process onto the federal human rights regime, the CHRC should return to its roots by prioritizing an investigative model that actively gathers evidence, identifies witnesses, and supports complainants in building their cases. This proactive approach would uphold the accessibility and informality fundamental to the human rights system.

The CHRC must also collaborate with equality-seeking groups to refine its rules, ensuring they reflect and reinforce principles of equity, accessibility, and substantive equality. It is concerning that these objectives are not explicitly embedded in the current rules.

A revitalized complaint process, rooted in its original purpose and emphasizing inclusivity and proactive support, would more effectively fulfill the Act’s objectives while safeguarding the human rights regime’s unique strengths of accessibility, informality, and substantive equality.